Traviss v. Commonwealth

Mr. Justice Sterrett delivered the opinion of the court, It was of course incumbent on the Commonwealth to establish the corpus delicti; to prove to the satisfaction of the jury that the bones and other human remains found in the ruins of the burned building were those of Martha Sylvia; that her death was not the result of accident or any natural cause, but that she was murdered by some one at or about the time the barn was burned; and that, in the commission of the crime, the prisoner was the guilty agent. On behalf of the Commonwealth, competent evidence tending to prove each of these essential facts was adduced and with proper instructions submitted to the jury. Upon them rested the responsibility of carefully considering all the testimony and ascertaining therefrom what the facts were. Before reaching the conclusion announced by their verdict, they must have been satisfied beyond a reasonable doubt that Mrs. Sylvia came to her death neither by her own hand nor by any natural or accidental cause, but that her death was the result of unlawful violence of some kind, wilfully and maliciously inflicted on her person [605] by the prisoner. Some of the testimony tending to establish the corpus delicti also tended to connect the prisoner with the crime charged in the indictment. The testimony is quite voluminous, and we deem it unnecessary to refer specifically to the several items thereof bearing more or less directly on the questions involved in the issue. It is sufficient to say that it was all proper for the consideration of the jury, and, as we think, sufficient to justify them in reaching the conclusion they did. There was no error, therefore, in charging the jury as complained of in the last specification. The subject of complaint in the first four specifications is that tlie grand jury by whom the indictment was passed upon and returned was not legally constituted. The record shows the regular term of the Courts of Quarter Sessions, Oyer and Terminer and General Jail Delivery for the county of Tioga began May 7,1888, and continued for two weeks. Tlie indictment was found and returned into the Quarter Sessions on the eighth day of the term, and was duly certified by that court into tlie Oyer and Terminer for trial. The grand jury was regularly drawn and summoned for the May sessions of said courts, and ordinarily they would have transacted their business during the first week of the term, but the court, for the reason stated in its special order, determined that the business of the grand jury should be transacted during the last instead of the first week of the term, and accordingly, in the exercise of its discretion, postponed the attendance of the jury until Monday of the second week, at which time they were duly organized and proceeded with the business. Being regularly drawn and summoned for the term, the grand jury were thus properly in attendance during the second week thereof, and the indictment acted on and returned during that time is neither irregular nor illegal. For the summarized reasons given by the learned president of the court in the conclusion of his opinion refusing the motion to quash, we think there was no error committed by tlie court in that regard, and hence the first to fourth assignments, inclusive, are not sustained. There was no error in the ruling complained of in the fifth specification. As was said in Allison v. Commonwealth, 3 Out., 17, it is only when it appears the juror has formed a fixed opinion of the prisoner’s guilt that he is disqualified. Mere impressions do not disqualify. The object of an examination on voire dire is to test the qualification of the juror by ascertaining from his own lips whether he has formed an opinion as to the guilt or innocence of the accused, and if so, whether the opinion he has formed is of such a character as to disqualify him as a juror in the case. The question that was propounded to the juror and excluded by the court was clearly [606] improper in this,, that it was not calculated to elicit such information as would be a proper test of his qualification. The question suggested by the court was the usual and proper one. In answer to the question whether he had formed any opinion of the prisoner’s guilt or innocence, the reply of the' juror was,' “No, sir; I have probably expressed myself, as probably most every man has, as saying that the circumstances were strong; but I have formed no opinion that it was so.” This fairly expresses the substance of what was elicited by examination of the juror on his voire dire; and, tested by the principles recognized in Staup v. Com., 24 P. F. S., 458; O’Mara et al. v. Com., 25 Id. 424; Ortwein v. Com., 26 Id., 415; Curley v. Com., 3 Norris, 151, and Allison v. Com., supra, the examination failed to disclose any legal disqualification. ■ The sixth specification was not pressed on argument, and does not call for special notice. It is not sustained. ' Tested by the authorities above cited, there was no error in the rulings complained of in the seventh to tenth specifications, inclusive. The alleged defects complained of in the eleventh and twelfth specifications are at most merely formal. They do not affect the merits of the case; and it is a sufficient answer to say, the 11th Section of the Act of 1860 requires that objections to an indictment for formal defects, apparent on the face thereof, shall be taken by demurrer or on motion to quash, before the jury is sworn, and not afterwards: Phillips v. Com., 8 Wright, 197; Com. v. Frey, 14 Id., 245. The subject of complaint in the thirteenth specification is substantially the same as that involved in the first four spech fications which have been already noticed. The record shows that the indictment was duly found and returned by the grand jury, and that thejr were duly sworn as such in the county of Tioga at May sessions, 1883. Moreover, it is too late to take advantage' of a merely formal defect. The refusal to set aside the verdict and order a new trial is-the subject of complaint in the fourteenth specification. It appears one of the jurors by whom the verdict was rendered was related to the person who is alleged in the indictment to have been murdered, and the fact of such relationship was not known to the prisoner or his counsel until after rendition of the verdict. While it was shown to the satisfaction of the "court below that the juror’s mother and the.mother of the murdered woman were cousins, and the fact was unknown to the prisoner or his counsel at the time of trial, it was shown with equal clearness that the juror had never seen the murdered woman or heard of her except in connection with the alleged murder,, and was absolutely ignorant of any relation [607] ship until several days after the verdict was rendered. If the fact of relationship had been known and brought to the attention of the court before the juror was sworn, he doubtless would have been excused or successfully challenged for cause; but it was unknown to the court as well as the counsel on both sides, and the juror, after being examined in the usual manner, was accepted and sworn. The time to challenge is before the juror is sworn; if not exercised then, the right is waived. That waiver may be relieved against when the party affected has been intentionally misled or deceived by the juror or the opposite party; but it is not even pretended there was anything of the kind in this case. Neither the fairness nor the impartiality of the verdict is assailed on any ground connected with the relationship of the juror to the murdered woman. It is not and cannot be pretended that he or any of his fellows were in any manner influenced thereby. As the learned president of the court below well remarked, “His judgment could not have been affected, even insensibly, by a circumstance of which he had not the slightest knowledge.” The newly-discovered relationship was, therefore, no reason for setting aside the verdict. The remaining specifications — -fifteenth to twenty-second, inclusive — relate to the charge of the court. There is nothing in either of them that requires special notice. Viewed as a whole, the charge was a full, clear and adequate presentation of the case to the jury. The case was properly submitted on all the testimony before them, without binding instructions as to the facts, and the prisoner has no just reason to complain that he has not had a fair and impartial trial. It is true the evidence relied on by the Commonwealth was mainly circumstantial, but it was nevertheless competent and proper for the consideration of the jury. If they believed, as they doubtless did, that the facts and circumstances of the case, as they found them from the evidence, pointed clearly and satisfactorily to his guilt, and were, at the same time, irreconcilable with any other reasonable hypothesis, they were warranted in finding as they did. With them was the responsibility. The court below, being satisfied with the verdict, refused to disturb it; and there appears to be nothing on the face of the record before us that would justify us in reversing the judgment pronounced thereon. The judgment of the Court of Oyer and Tor-miner of Tioga county is affirmed, and it is ordered that the record be remitted to said court for the purpose of execution.